Sandip Sood vs D.D.A.
2009 Latest Caselaw 752 Del

*                   HIGH COURT OF DELHI AT NEW DELHI

+                   W.P.(C) 7341/2008 & CM 14227/2008

%                                          Date of decision : 05.03.2009
IN THE MATTER OF :

#SANDIP SOOD                                           .....  Petitioner
!                                    Through:     Ms. Richa Kapoor, Advocate

                    versus

$D.D.A.                                                ..... Respondent
^                                    Through:     Mr. Rajiv Bansal, Advocate

CORAM

* HON'BLE MS.JUSTICE HIMA KOHLI

     1. Whether Reporters of Local papers may be allowed to see the
        Judgment? No.

     2. To be referred to the Reporter or not? No.

     3. Whether the judgment should be reported in the Digest? No.

HIMA KOHLI, J. (ORAL)

1. This writ petition is filed by the petitioner praying inter alia for

directions to the respondent/DDA to provide basic amenities in the Local

Shopping Complex at Sector 5, Dwarka, New Delhi, and to repair the shop

bearing No. 5, LSC, Sector 5, plot No. 18/12, ground floor, allotted in the

tender to the petitioner. The second relief sought by the petitioner is for

directions to the respondent/DDA to pay interest @ 10% on the amount

deposited by the petitioner till the basic amenities are provided and repairs

carried out in the shop.

2. Facts of the case are that the respondent invited tenders in

March, 2008 in respect of the shops including the shop, subject matter of

the writ petition. In response thereto, the petitioner applied to the

respondent and was declared the highest bidder in respect of the aforesaid

shop in question on 28.03.2008 for a bid amount of Rs.28 lacs. The

petitioner paid 25% of the bid amount as earnest money, i.e., Rs.7 lacs on

the date of the finalization of the bid. Vide letter dated 21.04.2008, the

respondent issued a demand letter to the petitioner demanding the balance

payment of 75% of the bid amount, i.e., Rs.21,00,045/- to be paid on or

before 20.05.2008, with a condition that thereafter interest would be

chargeable @ 15% for every 15 days and for the next 180 days failing

which, the earnest money shall be forfeited.

3. Counsel for the petitioner states that a further amount of Rs.7

lacs was deposited by the petitioner with the respondent on 14.10.2008,

i.e., within the time permitted by the respondent on payment of interest,

thus leaving a balance amount of Rs.14 lacs payable by the petitioner. It is

contended on behalf of the petitioner that looking at the condition of the

shop in question, the petitioner wrote a letter dated 30.09.2008 to the

respondent requesting it to repair the shop in view of the fact that the walls

of the shop were damaged, there were no electricity fittings, there existed

no water or street lights, the floor, both inside and outside of the shop was

damaged and there were no toilet facilities in the market for the purposes of

running the shop. As the respondent/DDA failed to take any action on the

request of the petitioner, the petitioner filed the present writ petition.

4. Notice was issued on the present petition on 17.10.2008 on

which date, the respondent accepted the notice and sought time to file reply.

On the interim application filed by the petitioner, it was ordered that, subject

to the petitioner depositing the balance sale consideration in the Court within

one week, the earnest money of the petitioner would not be forfeited by the

respondent and the allotment in respect of the shop would not be cancelled.

In the meantime, the respondent was directed to undertake the complete

repair work in relation to the shop in question and provide the basic

amenities, without prejudice to its right. It was further ordered that in case

the aforesaid work was completed by the respondent, it may place

photographs on the record and seek orders for release of the amount

deposited in the Court. Simultaneously, the petitioner had filed an

application for seeking appointment of a Local Commissioner to report the

condition of the shop in question. The collective fee of the Local

Commissioner was fixed at Rs.15,000/- in the present case and in WP(C)

7349/2008.

5. The Local Commissioner carried out an inspection of the area in

question and filed his report dated 01.11.2008 confirming that the shops,

subject matter of the present writ petition and WP(C) 7349/2008, were not

in a fit condition for running any business therefrom. It was pointed out that

the shutter rolling systems were non-operational; there were no rolling

covers inside the shops; the iron shutter was in broken condition, patches of

seepage were noticed in the ceiling of the shop; conduit pipes for electricity

connection were yet to be installed; the gang box, electric switches and

wiring were yet to be installed; the open places provided adjacent to the

Local Shopping Centre were found to be not maintained; the boundary wall

was found to be in broken condition; the drain/sewer holes were filled up

with sand and dirt; the bathroom and toilet were without doors & windows

and not properly maintained; there was no water or electricity in the toilet

and the bathroom; the feeder cables were not installed to the common

electric meter box and the electric meter boxes were without cover. Thus,

the Local Commissioner reported that basic necessities/amenities were not

available for running the business from the shops.

6. Pursuant to the aforesaid report of the Local Commissioner, the

respondent/DDA filed its counter affidavit dated 12.02.2009 admitting

therein that the shops in question require some repairs. However, it is

contended on behalf of the respondent that the petitioner is expected to

have inspected the shop before submitting a tender therefore in accordance

with the terms and conditions of the tender and since the shop was being

sold on an 'as is where is' basis, the petitioner cannot take a plea that he

was unaware of the site condition. It was also contended on behalf of the

respondent that the petitioner could not have avoided payment of the

consideration amount of the shop merely because it was not in a good

condition.

7. It is pertinent to note that the petitioner has filed another

application, being CM 3143/2009 enclosing therewith the current

photographs of the shop in question, which still show that a large amount of

repair work is required to be undertaken in the said shop to enable the

petitioner to run his business therefrom and the toilet block in the complex

and the common areas therein are required to be repaired. Looking at the

condition of the shop and the peripheral area, as is apparent from a perusal

of the recent photographs filed by the petitioner and those filed along with

the writ petition as also by the Local Commissioner alongwith his report,

there is no doubt about the fact that the petitioner could not have been in a

position to run his business from the shop in question in the condition, in

which it was. The respondent cannot be permitted to take advantage of the

clause contained in the terms of tender to the effect that the shop is being

sold on an 'as is where is' basis, when it is the duty of the respondent to

make the Shopping Complex reasonably presentable for any shopper to

approach the Shopping Complex, much less for the petitioner to start his

business from the said Complex. The condition of the Shopping Complex as

is reflected from the photographs filed by the Local Commissioner with his

report as Annexures 1 to 2 collectively is, to say the least, appalling.

8. In the aforesaid facts and circumstances, the respondent is

directed to take immediate steps to repair the shop in question, allotted to

the petitioner and provide basic amenities in the shopping complex in

question including the common areas, within a period of eight weeks from

today, whereupon the respondent shall be entitled to release of the balance

50% earnest money deposited by the petitioner in Court as per order dated

17.10.2008.

9. Insofar as the claim of the interest by the petitioner from the

respondent is concerned, in view of the facts and circumstances of the case,

ideally the respondent ought to be called upon to pay interest on the 50%

amount deposited by the petitioner with the DDA, till the shop is made fit for

use. However, as per the demand letter dated 21.04.2008, the petitioner is

also required to pay interest @ 15% per annum after expiry of 30 days from

the date of the demand. Admittedly, the petitioner has not paid the 75% of

the bid amount within 30 days. In these circumstances, the equities are

balanced by holding that neither the petitioner, nor the respondent shall pay

any interest to each other. It is further clarified that in case the

respondent/DDA does not undertake the task of repairing the shop and

providing basic amenities in the Local Shopping Complex, Sector-5, Dwarka

within the stipulated time, as indicated by the Local Commissioner in his

report, the respondent shall be liable to pay interest @ 9% per annum on

the amount lying deposited with it.

10. It is further ordered that the amount deposited by the petitioner

in the Court shall be placed in a FDR by the Registry forthwith, initially for a

period of three months to be renewed thereafter, from time to time, till

further orders. The aspect of release of interest earned on the aforesaid

amount shall be considered at the time of releasing the amount to the

respondent in terms of the order dated 17.10.2008. It is further ordered

that taking into consideration the fact that the Local Commissioner's report

clearly established the contention of the petitioner that the respondent/DDA

was grossly in default in repairing the shop, the fee of the Local

Commissioner shall be borne by the respondent/DDA by reimbursing the

said amount to the petitioner through counsel within four weeks.

11. The writ petition is disposed of alongwith the pending application.

12. List in the category of 'directions' for compliance on 20.07.2009.

HIMA KOHLI,J MARCH 05, 2009 rkb